Beyond the Veil: A Response

I’m extraordinarily grateful to the many people who posted comments on my piece, “Veiled Threats?” I note that many have come from educated and active Muslim women (in countries ranging from the U. S. to India), who have expressed a sense of “relief” at having their convictions and voices taken seriously.

I’ll begin my reply with a story. The day my article came out, I went to a White Sox game (the one in which my dear team took over first place!). I was there with two friends from Texas and my son-in-law, who was born in Germany and now has a green card. So, in Chicago terms, we were already a heterogeneous lot. Behind me was a suburban dad with shoulder-length gray hair (an educated, apparently affluent ex-hippie, like the “Bobos” of David Brooks’s book), who took pleasure in explaining the finer points of the game (like the suicide squeeze) to his daughter and two other preteen girls in fashionable sundresses. On our right was a sedate African-American couple, the woman holding a bag that marked her as working for the “U. S. Census Religion subcommittee” of her suburban county. In front of us were three Orthodox Jewish boys, ages around 6, 10, and 18, their tzizit (ritual fringes) showing underneath their Sox shirts, and cleverly double-hatted so that they could doff their Sox caps during the national anthem, while still retaining their kipot. Although this meant that they had not really bared their heads for the Anthem, not one person gave them an ugly stare or said, “Take off your hat!” — or, even worse, “Here we take off our hats.” Indeed, nobody apart from me seemed to notice them at all.

I don’t always feel patriotic, but I did then. I would not encourage a child or relative of mine to wear tzizit or, outside of temple, a kipoh. I’m a Reform Jew, and I view these things as totemism and fetishism. But I would not offend strangers by pointing that out, or acquaintances unless they were friends who had asked my advice. And that’s the way I feel about most of these things: it’s not my business. Luckily, a long-dominant tradition in American culture and law agrees with me. From the time when Quakers and Mennonites refused to doff their hats, and when both Mennonites and Amish adopted “pre-modern” dress, we Americans are pretty comfortable with weird clothes, and used to the idea that people’s conscientious observances frequently require them to dress in ways that seem strange or unpleasant to the majority. To the many people who wrote about how immigrants have to learn to fit in, I ask: what would you have liked to see at that ball game? The scene I witnessed, or three Jewish boys being ejected from the park because they allegedly failed to respect the flag? (And note that, like most minorities, they did show respect in the way they felt they could, without violating their conscience.)

Before addressing a series of points raised in the comments, two prefatory notes:

1. Throughout, I am speaking only about liberal democracies, not about autocratic regimes. It’s only in such democracies where liberty of conscience is a reality anyway, so I think that examples of autocracy in Saudi Arabia are beside the point. We’re talking about what limits liberal democracies may reasonably impose on freedom of conscience and expression while remaining consistent with their basic principles.

2. To those who described me as in an “ivory tower,” let me point out that I have spent many years working in international development organizations and that I have particularly close ties with India, home to the second-largest Muslim population in the world (the largest being in Indonesia). I’ve written a book about interreligious violence in India (“The Clash Within: Democracy, Religious Violence, and India’s Future,” 2007), which turns out to be largely a story of Hindu neo-fascist organizations fomenting violence against Muslims. So in fact I am not in the ivory tower so far as these issues are concerned, and I’ve spent many years working with organizations that foster education and other opportunities for poor women.

All right, now to my argument. Remember that my contention was that pursuit of conscientious commitments is a very important human interest, closely linked to human dignity, which can rightly be limited only by a “compelling state interest.” I then went on to argue that none of the interests standardly brought forward against the burqa is compelling, and, moreover, that any ban on the burqa in response to these reasons would require banning other common practices that nobody objects to because of their familiarity. As Annie rightly summarizes (126): “Hypocrisy isn’t democratic.”

1. The position of the Catholic Church. Stephen O’Brien points out helpfully that the “Catechism of the Catholic Church,” in sections dealing with religious liberty and conscience (sections 1782 and 2106) takes a position that has been used by the Catholic Church in France to oppose a ban on the burqa. O’Brien and I once acted in a play together, during the time that both of us were undergraduates at N.Y.U., and in fact we had an intense argument about propriety in dress, which turned into a lasting collegial relationship. So I thank him for his intervention and his urging my study of the Catechism!

2. The special case of France. I did not discuss France in my piece, but since some readers did, let me comment. The French policy of laïcité does indeed lead to restrictions on a wide range of religious manifestations, all in the name of a total separation of church and state. But if one looks closely, the restrictions are unequal and discriminatory. The school dress code forbids the Muslim headscarf and the Jewish yarmulke, along with “large” Christian crosses. But this is a totally unequal burden, because the first two items of clothing are religiously obligatory for observant members of those religions, and the third is not: Christians are under no religious obligation to wear any cross, much less a “large” one. So there is discrimination inherent in the French system.

Would French secularism be acceptable if practiced in an even-handed way? According to U.S. constitutional law, government may not favor religion over non-religion, or non-religion over religion. For example, it was unconstitutional for the University of Virginia to announce that it would use student fees to fund all other student organizations (political, environmental, and so forth) but not the religious clubs (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U. S. 819 (1995)). I must say that I prefer this balanced policy to French laïcité; I think it is fairer to religious people. Separation is not total, even in France: thus, a fire in a burning church would still be put out by the public fire department; churches still get the use of the public water supply and the public sewer system. Still, the amount and type of separation that the French system mandates, while understandable historically, looks unfair in the light of the principles I have defended.

3. Terrorism and safety. A number of the commenters think that the burqa creates unique risks of various sorts, particularly in the context of the legitimate interest in preventing acts of terrorism. All I can say is that if I were a terrorist in the U. S. or Europe, and if I were not stupid, the last thing I would wear would be a burqa, since that way of dressing attracts suspicious attention. Criminals usually want not to attract suspicious attention; if they are at all intelligent, they succeed. I think I’d dress like Martha Nussbaum in the winter: floor length Eddie Bauer down coat, hat down over the eyebrows, extra hood for insulation, and a bulky Indian shawl around nose and mouth. Nonetheless, I have never been asked to remove these clothes, in a department store, a public building, or even a bank. Bank workers do look at my ID documents, though, and I’ve already said that at this stage in our technological development I think it is a reasonable request that ID documents contain a full face photo. (Moreover, I’ve been informed by my correspondence that most contemporary Islamic scholars agree: a woman can and must remove her niqab for visual identification if so requested.) In the summer, again if I were an intelligent sort of terrorist, I would wear a big floppy hat and a long loose caftan, and I think I’d carry a capacious Louis Vuitton bag, the sort that signals conspicuous consumption. That is what a smart terrorist would do, and the smart ones are the ones to worry about.

So, what to do about the threat that all bulky and non-revealing clothing creates? Airline security does a lot with metal detectors, body imaging, pat-downs, etc. (One very nice system is at work in India, where all passengers get a full manual pat-down, but in a curtained booth by a member of the same sex who is clearly trained to be courteous and respectful.) The White Sox stadium searches all bags (though more to check for beer than for explosives, thus protecting the interests of in-stadium vendors). Private stores or other organizations who feel that bulky clothing is a threat (whether of shoplifting or terrorism or both) could institute a nondiscriminatory rule banning, e.g., floor-length coats; they could even have a body scanner at the door. But they don’t, presumably preferring customer friendliness to the extra margin of safety. What I want to establish, however, is the invidious discrimination inherent in the belief that the burqa poses a unique security risk. Reasonable security policies, applied to similar cases similarly, are perfectly fine.

4. Depersonalization and respect for persons. Several readers made the comment that the burqa is objectionable because it portrays women as non-persons. Is this plausible? Isn’t our poetic tradition full of the trope that eyes are the windows of the soul? And I think this is just right: contact with another person, as individual to individual, is made primarily through eyes, not nose or mouth. Once during a construction project that involved a lot of dust in my office, I (who am prone to allergies and vain about my singing voice and the state of my hair) had to cover everything but my eyes while talking to students for a longish number of weeks. At first they found it quite weird, but soon they were asking me how they could get a mask and filter scarf like the ones I was using. My personality did not feel stifled, nor did they feel that they could not access my individuality.

More generally, I think one should listen to what women who wear the burqa say they think it means before opining. Even if one feels convinced that depersonalization is what’s going on, that might be a reason for not liking that mode of dress, but why would it be a reason for banning it? If the burqa were uniquely depersonalizing, we could at least debate this point: but, as I pointed out, a lot of revealing clothing is plausibly seen as a way of marketing a woman as sex objects, and that is itself a form of depersonalization. The feminist term is “objectification,” and it has long been plausibly maintained that a lot of advertising and other aspects of culture objectify women, treat them as sex objects rather than as full persons. The models in porn (whether films or photos) are usually not conspicuous for their rich individuality. (Indeed, in the light of the tremendous cultural pressure to market oneself as a sex object, one might feel that wearing a lot of covering is a way of resisting that demand or insisting on intimacy.) In any case, what business is it of government to intervene, if there is no clear public interest in burdening liberty of conscience in this way?

At this point, I want to address the point about respect raised by Amy (115). I agree with her that we needn’t approve of the forms of dress that others choose, or of any other religious observance. We may judge them ridiculous, or revolting, or even hateful. I do think that one should try to understand first before coming to such a judgment, and I think that in most cases one should not give one’s opinion about the way a person is dressed unless someone has asked for it. But of course any religious ceremony that expresses hatred for another group (a racist religion, say) is deeply objectionable, and one can certainly protest that, as usually happens when the KKK puts on a show somewhere these days.

I do not think that a burqa is a symbol of hatred, and thus not something that it would be reasonable to find deeply hateful. It is more like the boys and their tzizit, something I may feel out of tune with, but which it is probably nosy to denounce unless a friend has asked my opinion. Still, if Amy wants to say that it is deeply objectionable, and that she does not respect it, that does not in any way disagree with the principles I expressed in my article. Her intervention prompts me to make a necessary clarification. I am not saying that all religious activities ought to be respected. Equal respect, in my view, is rightly directed at the person, and the core of human dignity in the person, which I hope Amy will agree all these people still have. Respecting their equal human dignity and equal human rights means giving them space to carry out their conscientious observances, even if we think that those are silly or even disgusting. Their human dignity gives them the right to be wrong, we might say. One religion that makes me cringe is an evangelical sect that requires its members to handle poisonous snakes (the subject of long litigation). I find that one bizarre, I would never go near it, and I tend to find the actions involved disgusting. But that does not mean that I don’t respect the people as bearers of equal human rights and human dignity. Because they have equal human rights and human dignity, they get to carry on their religion unless there is some compelling government interest against it. The long litigation concerned just that question. Since the religion kept non-consenting adults and all children far away from the snakes, it was not an easy question. In the end, a cautious government decided to intervene (Swann v. Pack, 527 S. W. 2d 99 (Tenn. 1975)). But that did not mean that they did not show equal respect for the snake-handlers as human beings and bearers of human dignity and human rights.

What respect for persons requires, then, is that people have equal space to exercise their conscientious commitments, not that others like or even respect what they do in that space. Furthermore, equal respect for persons is compatible, as I said, with limiting religious freedom in the case of a “compelling state interest.” In the snake-handler case, the interest was in public safety. Another government intervention that was right, in my view, was the judgment that Bob Jones University should lose its tax exemption for its ban on interracial dating (Bob Jones v. U. S., 461 U. S. 574 (1983). Here the Supreme Court agreed that the ban was part of that sect’s religion, and thus that the loss of tax-exempt status was a “substantial burden” on the exercise of that religion, but they said that society has a compelling interest in not cooperating with racism. Never has the government taken similar steps against the many Roman Catholic universities that restrict their presidencies to a priest, hence a male; but in my view they should all lose their tax exemptions for this reason. (The compelling interest standard is difficult to delineate, and courts can get it wrong, which is one reason why Justice Scalia prefers the Lockean position.)

Why is the burqa different from the case of Bob Jones University? First, of course, government was not telling Bob Jones that they could not continue with their policy, it was just refusing to give them a huge financial reward, thus in effect cooperating with the policy. A second difference is that Bob Jones enforced a total ban on interracial dating, just as the major Catholic universities (Georgetown excepted, which now has a lay president) have imposed a total ban on female candidates for the job of president. The burqa, by contrast, is a personal choice, so it’s more like the case of some student at Bob Jones (or any other university) who decides to date only white females or males because of familial and parental pressure. Amy and I would probably agree in disliking such behavior. But it does not seem like a case for government intervention. Which brings me to my next point.

5. Social Pressure and government intervention. When is social and familial pressure bad enough to justify state intervention with a conscientious observance? I have already said that all forms of physical coercion are inadmissible and should be vigorously interfered with, whether they concern children or adults. I would even favor no-drop laws in cases of domestic violence, since we know that a woman’s withdrawal of a complaint against a violent spouse or partner is often coerced. My judgment about Turkey in the past — that the ban on veiling was justified, in those days, by a compelling state interest — derived from the belief that women were at risk of physical violence if they went unveiled, unless the government intervened to make the veil illegal for all. Today in Europe the situation is utterly different, and no physical violence will greet the woman who wears even scanty clothing — apart from the always present danger of rape, which should be dealt with by convicting violent men, not by telling women they can’t wear what they want to wear. (And this too the law has now recognized: thus, in the case that became the basis for the excellent film “The Accused,” a woman’s sexually provocative behavior was found not to give the men who raped her any defense, given that she clearly said “no” to the rape.

Thus, in response to Samuel (44), my point about Turkey is not one about numbers: if even a minority were at risk of physical violence, some government action would be justified. Usually, what government will rightly do is to stop the assailants from beating up on people, rather than banning any religious practices. For example, the Supreme Court said that Jehovah’s Witnesses have a constitutional right to say negative things about Catholics in the public street, and the sort of government intervention that would be appropriate would not be a ban on insults to Catholics, but rather a careful defense of the minority against coercive pressure both from the state and from private individuals (see Cantwell v. Connecticut, 310 U. S. 296 (1940): Connecticut’s action charging the Jehovah’s Witnesses with a breach of the peace for their slurs against Catholics violated their rights under the First and Fourteenth Amendments). The situation in Turkey was different, because the violence toward unveiled women was thought to be so widespread and so unstoppable that only a total ban on the veil could stop it. If the facts were correct, the decision was (temporarily) right.

When the pressure is emotional only, the case is much more difficult. On the whole, we tend to favor few legal limits for adults: thus, if someone is in an emotionally abusive relationship, that is a case for counseling or the intervention of friends and family, not for the police. Even when we can see that what is going on is manipulative — e.g. the man says, “I won’t date you any longer if you don’t do this or that sex act” — we think that is the business of the people involved and those who care about them, not of the police. I think that emotional coercion to wear a burqa, applied to an adult woman (threats of withdrawal of affection, for example, but not physical violence) is like this, and should be dealt with by friends and family, not by the law.

What about children? This opens up a huge topic, since there is nothing that is more common in the modern family than various forms of coercive pressure (to get into a top college, to date people of the “right” religion or ethnicity, to wear “appropriate” clothes, to choose a remunerative career, to take a shower, “and so each and so on to no last term” as James Joyce wrote in “Ulysses.” So: where should government and law step in? Not often, and only where the behavior either constitutes a gross risk to bodily health and safety (as with Jehovah’s Witness children being forbidden to have a life-saving blood transfusion), or impairs some major functioning. Thus, I think that female genital mutilation practiced on minors should be illegal if it is a form that impairs sexual pleasure or other bodily functions. (A symbolic pin-prick is a different story.) Male circumcision seems to me all right, however, because there is no evidence that it interferes with adult sexual functioning; indeed it is now known to reduce susceptibility to H.I.V./AIDS. The burqa (for minors) is not in the same class as genital mutilation, since it is not irreversible and does not engender health or impair other bodily functions — not nearly so much as high-heeled shoes, as I remarked (being a proud lover of the same). Suppose parents required their daughters to wear a Victorian corset — which did do bodily damage, compressing various organs. There might be a case for a ban then. But the burqa is not even in the category of the corset. As many readers pointed out, it is sensible dress in a hot climate where skin easily becomes worn by sun and dust.

At the limit, where the state’s interest in protecting the opportunities of children is concerned, is the denial of education at stake in the Supreme Court case, Wisconsin v. Yoder (406 U. S. 205 (1972)), in which a group of Amish parents asked to withdraw their children from the last two years of legally required schooling. They would clearly have lost if they had asked to take their children out of all schooling, but what was in question were these two years only. They won under the accommodationist principle I described in my article, although they probably would have lost on Justice Scalia’s Lockean test, since the law mandating education until age 16 was nondiscriminatory and not drawn up in order to persecute the Amish. The case is difficult, because the parents made a convincing case that work on the farm, at that crucial age, was a key part of their community-based religion — and yet education opens up so many exit opportunities that the denial even of those two years may unreasonably limit children’s future choices. And of course the children were under heavy pressure to do what their parents wanted. (Thus Justice Douglas’s claim that the Court should decide the case by interviewing the children betrayed a lack of practical understanding.)

6. How much choice is enough? Annie (126) and several others have pointed out that we all get our values through some type of social indoctrination, religious values included. So we can’t really assume that the choice to wear a burqa is a free choice, if we mean by that a choice that has been deliberated about with due consideration of all the alternatives and with unimpeded access to some alternatives. But then, as Annie says, we can’t assume that about anyone’s choice of anything — career, romantic partner, politics, etc. What we can do, I think, is to guarantee a threshold level of overall freedom, by making primary and secondary education compulsory, by opening higher education to all who want it and are qualified (through need-blind admissions), and to work on job creation so that all of our citizens have some choice in matters of employment. Moreover, the education that children get should encourage critical thinking, expansion of the imagination, and the other humanistic ideals that I discuss in my recent book, “Not For Profit: Why Democracy Needs the Humanities” (Princeton University Press 2010). If a person gets an education like that (and it is not expensive, I’ve seen it done by women’s groups in India for next to nothing, just a lot of passion), then we can be more confident that a choice is a choice.

Thanks to you all for taking the time to respond!

Martha Nussbaum teaches law, philosophy, and divinity at The University of Chicago. She is the author of several books, including “Liberty of Conscience: In Defense of America’s Tradition of Religious Equality” (2008) and “Not for Profit: Why Democracy Needs the Humanities” (2010).